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Journal of Korean Law
Volume 7 Number 1

Law Research Institute & BK 21 Law

Seoul National University


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INFORMATION ABOUT THE JOURNAL OF KOREAN LAW
The Journal of Korean Law is co-published twice annually, in June and December, by Law Research Institute and BK
21 Law of Seoul National University. Please address all correspondence to:
College of Law 15-527
Seoul National University
Shillim-dong San 56-1, Kwanak-ku
Seoul 151-742, Korea
Phone: +82-(0)2-880-6867
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The Journal of Korean Law assumes that all authors listed in a manuscript have agreed with the following policy on
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3. All published manuscripts become the permanent co-property of Law Research Institute and BK 21 Law of Seoul
National University and may not be published elsewhere without written permission.
ISSN 1598 -1681


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ADVISORY BOARD
William P. Alford
Harvard University

Bernard S. Black
University of Texas at Austin

Jerome A. Cohen
New York University

John O. Haley
Washington University in St. Louis

Young Moo Kim
Kim & Chang, Korea

Jung Hoon Lee
Bae, Kim & Lee, Korea

Tae Hee Lee
Lee & Ko, Korea

Jean Morange
University of Paris 2 Pantheon-Assas

Woong Shik Shin
Shin & Shin, Korea


Young Moo Shin
Shin & Kim, Korea

Malcolm Smith
University of Melbourne

Sang Hyun Song
International Criminal Court

Frank K. Upham
New York University

Hoil Yoon
Yoon & Yang, Korea

Michael K. Young
University of Utah

EDITORIAL BOARD
Editor-in-Chief
Hwa-Jin Kim
Seoul National University
Editors
Seung Wha Chang
Seoul National University

Stephen Choi
New York University


Tom Ginsburg
University of Illinois

Sang Gon Kim
Lee & Ko, Korea

Kenneth S. Korea
Dechert Silicon Valley

Chang Hee Lee
Seoul National University

Keun-Gwan Lee
Seoul National University

John Ohnesorge
University of Wisconsin

Ghyo Sun Park
Shin & Kim, Korea

Joon Park
Seoul National University

Adam C. Pritchard
University of Michigan

Chi Yong Rim
Bae, Kim & Lee, Korea


Hyun Woong Song
Evergreen Law Group, Korea

Sunsuk Yang
Kyungpook National University

Young-Tae Yang
Horizon Law Group, Korea
Assistant Editor
Junho Kim
Seoul National University


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iii
Information About the Journal of Korean Law
iv
Advisory Board / Editorial Board
Articles
1
Korean Legal System and the Human Rights of Persons with Mental Disorders:
Current State and Challenges
Kyong-Whan Ahn

25
The Future Direction of Takeover Law in Korea
Stephen J. Choi
51
Why do We Pursue “Oral Proceedings” in Our Legal System?
Hyun Seok Kim

Journal
of
Korean
Law

81
Against the Viability of Private Enforcement: Focusing on Korean
Environmental Law
Hong Sik Cho
Comments
109
Litigating in Korea: A General Overview of the Korean Civil Procedure
Youngjoon Kwon
145
The Prospect for ISP’s Liability in UGC-Related Cases in Korea
Jun-Seok Park
2007 Beseto Conference
157
Between Dreams and the Reality: Making of the Administrative Procedure Act
in China
Xixin Wang
183
The Legal System of Nature Conservation in Japan: From the Viewpoint of

Biodiversity
Hisashi Koketsu
197
The Chinese Financial Conglomerate and Its Company Law Implications
Li Guo
217
Environmental Public Interest Litigation: When will it Flourish in China?
Jin Wang
229
New Regulatory Framework for Units of Non-regulated Collective Investment
Schemes in Japan
Hiroyuki Kansaku


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Korean Legal System and the Human Rights of
Persons with Mental Disorders:
Current State and Challenges
Kyong-Whan Ahn*
Abstract
Medical and social statistics present the alarming reality that one in four people will suffer from
mental illness at some point in their lives. Yet, in most countries, mental health is one of the least cared
about issues. Korea is no exception. Here people with mental disorders have been subject to prejudice,
stigma, discrimination and marginalization in all aspects of their social lives. Korean legal schemes
and practices reveal a grave injustice in the treatment of patients and the administration of the mental
health system. Yet, to this date, the Korean legal community has not shown the slightest of interests in
this matter. This paper, which is long overdue, aims at bringing this painful issue to public attention,
with a plea for attentive care for this vulnerable group of people. The current status of persons with
mental illnesses is analyzed critically and suggestions for improvement are made with a special
emphasis on the necessity for a comprehensive national report, as undertaken in both Australia and
U.S.A.

I. Introduction
According to a WHO report in 2001, mental health affects 450 million people and
one in four of us will suffer from mental illness at some time in our lifetimes.1)
Human rights abuses of mentally disordered people, particularly those who lack
sufficient social capital to stand up for themselves against mistreatment for the
reason of their illness and who are retained voluntarily or involuntarily in

* Chairperson, National Human Rights Commission of Korea; Professor of Law, Seoul National University.
1) MENTAL HEALTH — GLOBAL POLICIES AND HUMAN RIGHTS, at xi (Peter Morrall & Mike Hazelton eds.,
Whurr Publishers 2002).

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unregulated establishments, can be extremely serious and brutal.2) A mental health
care system should be ensured for the protection of the rights of people with mental
disorders, who are among the world’s most vulnerable groups. They are often
subjected to stigma, discrimination and marginalization in all societies, which
increases the likelihood of violations of their human rights. Mental disorders can
sometimes impair decision-making or legal capacity, and the affected-people may not
always seek or accept medical treatment for their problems. Rarely, people with
mental illness may put themselves or others at risk because of their impaired
decision-making ability. In fact, the risk of violence or harm associated with mental
disorders is relatively small.3) Common misconceptions on this matter should not be
allowed to influence legislation of mental health laws.4) The lives of people with
mental disorders have been one of the least addressed issues in the contemporary
Korean society, even in comparison to persons with physical disabilities whose
difficulties and hardships have come into spotlight in recent years.
This article aims to bring this topic into the arena of ‘law and society’ with a plea
for attentive care of the fellow jurists to these unduly neglected people in our society.
Part II of the article briefly overviews the international and domestic legal
frameworks on mental health care. In Part III, the article highlights current status of

the mentally disabled persons with selected statistics. Part IV discusses the roles of
the National Human Rights Commission of Korea in the promotion and protection of
the rights of the citizens with mental disorders, and Part V analyses flaws and
shortcomings in the legal system and practice of mental health care in Korea, as have
been repeatedly raised in recent years. Part VI concludes with a suggestion for a
comprehensive national report on the conditions of the mentally disordered, based on
models preceded in a few advanced countries.

2) Id. at xv.
3) Cho, Sung-Nam, A Study on the Criminal Psychotics — Crime Rates and Crime Motives, 3 JOURNAL OF
KOREAN NEUROPSYCHIATRIC ASSOCIATION 1025-35 (1992) (available only in Korean).
4) WORLD HEALTH ORGANIZATION, MENTAL HEALTH LEGISLATION AND HUMAN RIGHTS: MENTAL HEALTH
POLICY AND SERVICE GUIDANCE PACKAGE 2 (2003).

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II. Frameworks of Mental Health Law
1. International Framework
Concerns about human protection, respect, dignity, and tolerance have a long

history dating back to ancient Greece or China, even further to the very beginnings of
social gatherings. However, it was not until the mid-twentieth century that such
humanitarian concerns became formalized principles for universal application, with
the creation of the United Nations (1945) and the Universal Declaration of Human
Rights (1948).5) The Universal Declaration makes reference to universal human
rights of access to adequate health care in Article 25(1). Nonetheless, it was as late as
1991 that the principles for the protection and treatment of people suffering from
mental disorders have been proclaimed by the General Assembly of the U.N.6) The
United Nation Principles for the Protection of Persons with Mental Illness and for the
Improvement of Mental Health Care, often called ‘MI Principles’, enunciate that all
persons with a mental illness shall be entitled to have access to the best available
medical care appropriate to their health needs and be diagnosed without any political
interference and shielded from exploitation, discrimination and social stigma.7)
However, it should be noted that the adoption of the principles had not only been
much overdue but also the United Nations still tolerates involuntary incarceration,
enforced treatment (possibly psycho-surgical), restraint and seclusion in some
circumstances.8) As is easily understood, there is more to be done in practical rather
than theoretical terms.
The WHO Guidelines for the Promotion of Human Rights of Persons with

5) Morrall & Hazelton, supra note 1, at xi-xii.
6) The U.N. Principles for the Persons with Mental Illness and the Improvement of Mental Health Care, General
Assembly Resolution 46/119, 17 Dec. 1991(hereinafter referred to as “MI Principles”).
7) Principle 1 (Fundamental Freedoms and Basic Rights)
(1) All persons have the right to the best available mental health care, which shall be part of health and social
care system; (5) Every person with a mental illness shall have the right to exercise all civil, political,
economic, social and cultural rights as recognized in the UDHR, ICESCR, ICCPR, and in other relevant
instruments such as Declaration on the Rights of Disabled Persons and the Body of Principles for the
Protection of All Persons under Any Form of Detention and Imprisonment.
8) Morrall & Hazelton, supra note 1, at xiv.


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Mental Disorders9) is a supplementary document designed for an easier application of
the MI Principles to concrete actions. Other international instruments applicable to
the protection of rights of the mentally ill include the Declaration on the Rights of
Disabled Persons,10) the U.N. Convention on the Rights of Persons with Disabilities
(2006); and the Declaration of Hawaii/II as approved by General Assembly of World
Psychiatric Association in Vienna, Austria on July 10, 1983. These documents are
instrumental in formulating both policy and mechanical devices.

2. Legal Schemes of Korea
Like many other countries, mental health legislation in Korea is characterized as a
combination of an ‘integration approach’ and a ‘dispersion approach.’ In other
words, a specific statute on mental health is complemented by various general legal
instruments in which mental health issues are addressed.
As the basic norm, Article 10 of the Constitution declares that “every citizen shall
enjoy the right to human dignity and worth and to pursue happiness.” In the same
provision, the Constitution manifests the state’s general duty to protect the rights of

the citizen. This duty is reiterated in the Constitution with specific reference to
health.11) Based on these constitutional authorities, a barrage of statutes related to
mental health has been enacted. Particularly, the Mental Practice Act (1951) sets out
the ground scheme and rules. The Mental Health Act serves as a specification of the
Medical Practice Act attuned to its sub-category. The Mental Health Act was first
enacted in 1995 and entered into force in 1996 (Law No. 5133). Since then, it has
been amended a few times, lastly in 2006.12) It was the product from the increased
public awareness of mental health problems. A series of debates over the
mistreatment or ill-treatment of patients played an important part in shaping the
public agenda on mental health reform. In fact, since 1983, there has been only

9) Doc. WHO/MNH/MND/95.4 (1996).
10) UN General Assembly Resolution 3227 (XXX), 9 Dec. 1975.
11) Article 36, Section 3.
“Every citizen shall enjoy the protection of the State regarding their health.”
12) Ironically enough, an earlier legislation attempt was made in 1985 under the authoritarian regime, mainly for
regulating the ‘the undesirables’ under the pretext of ‘social protection.’ However, faced with ferocious opposition
from social workers and human rights activists, the government was forced to withdraw the legislative attempt.

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intermittent media coverage on the inhumane conditions of mental health facilities.13)
In the preparatory stages for the legislation of the Mental Health Act, the World
Health Origination provided technical assistance by arranging international experts to
participate in workshops held in Seoul. Korean psychiatrists and administrators
started to draft a bill modeled on a Japanese law of 1987. It was October 1993 that
the then Ministry of Health and Social Affairs submitted the final draft to the
National Assembly. At the invitation of the Korean government, the WHO
representatives reviewed the draft bill before its final passage by the National
Assembly in 1994. According to the WHO appraisal, as contrasted with cases in
western countries where the individual’s free will is strongly protected, the law gives
an important role to members of the family of a person with a mental illness,
allowing involuntary admission of such people to a mental health facility on the
grounds of the agreement between family members and certified psychiatrists.14)
The Act contains a few provisions addressing the rights of a patient. Article 2
protects the right to human dignity and worth (Sec. 1). It also minds the right to
physical integrity by articulating that the principle of voluntarism should be observed
in the entire process of treatment.15) The Act further ensures several social rights such
as the right to best available treatment, the right to education for a minor patient
(Article 2, Sec. 2 and 4), and the right to petition (Article 29). Despite such
provisions, the Act is regulatory rather than protective in character, from the
perspective of a patient.16) The Act mainly sets out basic working mechanisms of a
mental care system with a permissive attitude towards the tightened control over
mental patients. Therefore, it could hardly be recognized as a Bill of Rights for the
patient citizens.17)
The Mental Health Act carries both characteristics of health law and welfare law.
On the health side, as mentioned earlier, the Act is a special extension of the Medical

13) Seo, Dongwoo, The Protection of Human Rights of Persons with Mental Disabilities, presented in Public

Hearing on the Human Rights Situation in the Mental Health Facilities held by the National Human Rights
Commission of Korea, 20 Nov. 2004, at 10 (available only in Korean).
14) WORLD HEALTH ORGANIZATION, supra note 4, at 42.
15) For example, under Article 2 (Sections 5 and 6) of the Mental Health Act, involuntary admission of a patient
should be limited to exceptional situations.
16) Seo, supra note 13, at 12-13.
17) Id.

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Practice Act.18) The Social Welfare Law, the basic statute on this front, lists the
Mental Health Act as one of its major sister legislations (Article 2). In the same vein,
the Welfare of Disabled Persons Act (Article 2) includes persons with mental illness
in its coverage. Based on these provisions, the mentally ill are entitled to social
welfare benefits (Article 13).
A newly enacted statute, The Act for the Prevention of Discrimination against
Disabled Persons and Protection of Their Rights, etc. (2007)19) also reiterates mental
impairments in the definition of ‘disability’ on equal footing with physical
impairments (Article 2). Further, Article 37 of the Act explicitly proscribes

discrimination against persons with mental impairment and imposes special
affirmative duty on the state and local governments to make their best efforts to
organize preventive and educational activities.
Notwithstanding these firm principles of equality and non-discrimination, de jure
discrimination against persons with mental illness exists in many areas.20) For
example, a constitutional right to occupation for the mentally ill is severely curtailed.
There are at least 21 statutes as well that deny a license or authorization to a person
with mental illness. Specifically, anyone with a history of mental illness is ineligible
for being a medical doctor,21) pharmacist,22) medical technician, paramedic, barber,
beautician, veterinarian, hygienist, construction equipment operator, or even
mortician.23) Similarly, driver’s licenses for motor vehicles or motor boats are
categorically denied to mentally ill citizens.24) Further, such citizens are denied access
to the most basic of public services including public libraries25) and art museums.26)

18) See supra note 12 and accompanying texts.
19) Law No. 8341, 11 Apr. 2007
20) Park, Jong Ik et al., Discrimination of Mentally Ill Persons in Korean Legislative System, 43-2 JOURNAL OF
KOREAN NEUROPSYCHIATRIC ASSOCIATION 237-41 (2004).
21) Article 8, The Medical Service Act, Law No.221, 25 Sep. 1951, as amended as Law No. 8559, 27 Jul. 2007.
22) Article 4, The Pharmacist Act, Law No. 300, 18 Dec. 1953, as amended as Law No. 8558, 27 Jul. 2007.
23) SHIN, YOUNGJEON ET AL., LEGISLATIVE STUDY ON THE IMPROVEMENT OF HUMAN RIGHTS FOR PEOPLE WITH
MENTAL ILLNESS 78, (National Human Rights Commission of Korea 2006) (available only in Korean).
24) Article 70(2), Road Transportation Act, Law No. 941, 31 Dec. 1961, as amended as Law No. 7969, 19 Jul.
2006 and Article 5, Navigational Leisure Act, Law No. 5910, 8 Feb. 1999, as amended as Law No. 8621, 3 Aug.
2007.
25) Article 7(1), Rules for the Use of National Central Library, Decree of Ministry of Culture No. 8, 16 Jul.
1991, as amended as Decree No. 83, 10 Dec. 2003.
26) Article 8(1), Rules for the Entrance to the National Museum of Contemporary Art, Ministry of Culture

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As such, basic freedom of movement of persons with mental disorders is severely
restricted. In a similar vein, the Immigration Control Act27) in its Article 11 prohibits
the entry of a foreigner who is “mentally handicapped and void of a capacity of
discriminating sense and has no person to assist his or her sojourn activities in the
Republic of Korea.” Moreover, despite the Article 42 of Mental Health Act
prohibiting disclosure of the personal information of mental patients,28) a breach of
such provision takes place almost routinely, oftentimes by the governmental entities.
Property rights of persons with mental disorders are easily infringed upon as well.
Article 22 of the Mental Health Act obligates family members of a mental health
patient to protect the patient’s property rights. Nevertheless, incompetency provisions
of the Civil Code carry an inherent possibility of abuses against the mentally ill.
Traditionally, Articles 9 (quasi-incompetency) and 12 (incompetency) have been
misused by the family members as handy tools to eliminate or restrict the property
rights of their “less competent” family members.29)

III. Current State of the Mentally Ill
All the pertinent statistical information highlights an alarming situation for the
mental health of Korean people. According to a survey conducted by the Ministry of

Health and Welfare in 2001, 14.4 percent of Koreans between the ages of 18 and 64
were diagnosed of a mental disorder or of a kind of mental illness.30) It also indicated
that the majority of patients (68.7%) who were determined to have a mental illness
were aged between 20 and 49. The statistics of the Ministry of Health and Welfare of
2005 showed that total number of hospitalized patients steadily increased at the
average annual rate of 7.8 percent between the years 2000 and 2005: 51,757 in 2000
and 60,279 in 2005.31) According to a report of the National Human Rights

Decree No. 46, 1 May 1975, as amended as Decree No. 138, 30 Jun. 2006. This provision was repealed in 2004.
27) Law No. 1289, 5 Mar. 1963, as amended as Law No. 7655, 4 Aug. 2005.
28) “A person who was or is performing duties in relation to a person with mental illness as prescribed by this
Act shall not disclose or announce the secrets of other persons acquired in relation to the performance of such duties
except as specially prescribed in this Act or other Acts and subordinate statutes.”
29) The terms “lost mind” or “incompetency” typically indicate or remind the persons with mental disorders.
30) MINISTRY OF HEALTH AND PUBLIC WELFARE, A GUIDE TO THE MENTAL HEALTH BUSINESS 3 (2005).
31) 51,747(2002); 56,514 (2001); 58,218(2002); 62,154 (2003); 67,896 (2004)

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Commission of 2006, in less than a decade, the total number of hospital beds almost
tripled from 21,513 in 1996 to 62,554 in 2004.32) In 2004, only 8.4 percent of patients
were admitted to mental health care facilities on their own will.33) As high as 91.6
percent of patients were institutionalized involuntarily: 76.8 percent by the
arrangement of a family member bearing legal duty of guardianship and 13.3 percent
by initiative of governmental authorities. 34) On average, a patient was
institutionalized for 267 days,35) as sharply contrasted with the figures in other OEDC
countries: for example, 26.9 days in Germany, 52 days in the U.K., 35.7 days in
France, and 13.4 days in Italy.36) In the case of mental sanatoriums established for the
care of chronic and long-term patients who are not cared for by their own family
members, the figure went up to as high as 2,485 days.37)

IV. The Role of National Human Rights Commission
Established in 2001, the National Human Rights Commission emerged as one of
the high-profile national agencies of Korea. Its organic statute declares that its

Source from Ministry of Health and Welfare and National Health Insurance Corporation
32) SHIN ET AL., supra note 23, at 68.
33) Id. at 6.
34) Id.
Under the Act, a mental patient may be institutionalized in 4 ways: (1) A patient may be hospitalized under
Article 23 by filing a written request himself (voluntary admission); (2) The hospital may accept a patient with the
consent of a person legally responsible for the protection of the patient. In the case, the diagnoses of a psychiatrist
should be accompanied (Article 24); (3) On the report and request from a psychiatrist, the head of a local government
may cause a patient to be committed to a mental hospital, when there is a danger that he might harm himself or others
(Article 25); and (4) (Emergency measure arranged by police officer and psychiatrist) Those who discover a person
assumed to have psychopathy and who presents a significant risk of harm to himself or others, may request
emergency hospitalization of the person concerned to a medical institution for mental illness with the consent of a
doctor and a police officer when the situation is very urgent and the hospitalization as provided for in Articles 23
through 25 cannot be executed (Article 26).

35) NATIONAL HUMAN RIGHTS COMMISSION OF KOREA, REPORT OF STUDY VISIT TO THE UNITED KINGDOM AND
GERMANY: RESEARCH OF HUMAN RIGHTS PROTECTION OF PERSONS WITH MENTAL DISABILITIES 48 (2006) (available
only in Korean).
36) BAE, JEONGGYU, SURVEY ON THE PERFORMANCE OF MENTAL HEALTH CARE IN THE LOCAL GOVERNMENTS 6667 (National Human Rights Commission of Korea 2006) (available only in Korean).
37) NATIONAL HUMAN RIGHTS COMMISSION OF KOREA, supra note 35, at 48 (Mental Health Care Facilities)

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purpose is to “contribute to the realization of human dignity and worth and […] to
ensure the protection of the inviolable and fundamental human rights of all
individuals.”38) The Commission is a ‘quasi-judicial’ body to address human rights
violations. Citizens or foreign nationals in Korea may file a complaint alleging
abuses of human rights including discrimination. The Commission’s law governs the
acts of governmental entities as well as private actors.39) Based on a complaint or by
its own initiation, the Commission conducts a wide range of activities: most chiefly,
the investigation of the alleged acts and the recommendation for remedies to
respondent parties. The recommendation of the Commission does not legally bind
the parties concerned and thus it lacks enforceability. However, its influence is
enormous. The acceptance rate of the recommendations for remedies exceeds 80

percent.40)
The Commission has jurisdiction to consider the complaints of detainees in the
“detention or protective facilities” which include institutes for medical service as
provided in Section 2(a), Article 2 of the Commission Act. For the period between
November 2001 and June 2006, the Commission received 1,126 complaints alleging
human rights violations on the grounds of mental impairment. This figure comprises
5.6 percent of total complaints filed with the Commission during the same period.41)
The number of such complaints steadily grew in its first three years, and the
Commission was met with huge increase in pleas for help notably during 2004 and
2005. In response, the Commission installed petition boxes within health facilities, in
addition to enhancing public awareness of the Commission’s activities. Such efforts
seem to have substantially induced active complaint filings from the patients. The
Commission found substantive human rights violations in approximately 10 percent
of the complaints and issued recommendations for remedies. Private-run institutions
were found to be major violators. Violations were found in the process of admission
to a mental facility (24%), extension of the retention period and discharge (15%) and

38) Article 1, The National Human Rights Commission Act, Law No. 6481, 24 Mar. 2001, as amended as Law
No. 7796, 25 Dec. 2005.
39) Article 30, The National Human Rights Commission Act, Law No. 6481, 24 May 2001, as amended as Law
No. 7796, 25 Dec. 2005.
40) “Because of the increased respect for the Commission, in the legal and political communities, many of the
recommendations of the Commission are reported in the media, explored by scholars, seriously considered by
politicians and often adopted by the nation.” See Sean Hayes, THE KOREA TIMES, 10 Aug. 2007, at 21.
41) The Commission received 20,057 complaints in total between 1 November 2001 and 30 June 2006.

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excessive use of force or confinement (18%), and they included the invasion of
privacy and other forms of rights infringement.42)
In addition, since 2002, the Commission has hosted a series of workshops and
seminars on mental disabilities at both the domestic and international levels. This has
resulted in several recommendations presented to the government. The Commission
has also been engaged in various activities raising public awareness of the hardships
that these underprivileged people with mental illness endure. Particularly, in 2006,
the Commission took the issue of the rights of people with mental illness as one of its
top ten priority concerns, and it continued to do so in 2007.

V. Challenges in Korean Legal Framework for Mental Heath Care
Many humanitarian-minded psychiatrists, lawyers, and social workers have
pointed out serious flaws in the Korean legal framework of mental health care in
terms of both policy and practice.

1. The Principles of Separation and Discrimination
Fundamental criticism is that the current system is based on arcane philosophical
residue — the principles of separation and discrimination. Public ignorance and
prejudice by and large condone or even approve of such policies.
As one English scholar argued, until recently in the history of western
civilization, the determination of insanity was based on the notion that the mad were

categorically distinguished from the rest of humanity. They were a genus distinctive
from that of “normal” people, essentially ‘wild beasts’ to be excluded from the
jurisdiction of the courts or dealt with by separate laws and forms of discipline.43) In
criminal law, insanity was a prime cause of incompetnecy to commit a crime,
assuming that the perpetrator lacked mens rea (criminal intent).44) There is a

42) BAE, supra note 36, at 8.
43) ROBINSON, D.N., WILD BEASTS AND IDLE HUMORS: THE INSANITY DEFENSE
PRESENT, (Harvard University Press 1966).

FROM

ANTIQUITY

TO THE

44) Article 10, Criminal Code (1).
“The act of a person who, because of mental disorder, is unable to make distinction or to control his or her own

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prevailing ‘culturally normative prejudice’ associated with mental illness, which is as
constraining and brutal as political suppression.45)
Overt prejudice of the mass media has been reflected in news reports of the
crimes supposedly committed by someone with a history of mental disorder,
however slight it might have been. The Korean press is notorious for its
sensationalism, where TVs and on-line media compete among one another for the
highest ratings. 46) In a country where community concerns over terror are
widespread, any effort to protect human rights could arouse public demand for
increased control of the people with mental disorders.47) In Korea where incidents of
organized terrorism are relatively rare, any isolated case of ‘unmanly’ crime tends to
wage public paranoia against these perceived “semi-beasts.” Under such a backdrop,
government policy basically tends to favor building up demarcating walls between
the sane and “insane” of society.48)

2. The Principles of Community-Based Treatment and Rehabilitation
In a landmark decision, Olmstead v. L.C.,49) the Supreme Court of the United
States declared that the Americans with Disabilities Act (ADA) prohibits the
unnecessary institutionalization of persons with mental disabilities. In the words of
the Supreme Court, services to persons with disabilities must be provided “in the
most integrated setting possible.”50) The Olmstead rule is hardly an invention of the
U.S. Supreme Court. Earlier in 1991, the MI Principles manifested the rights of

will shall not be punished.”
45) Johnstone M.J., Stigma, Social Justice, and the Rights of Mentally Ill: Challenging the Status Quo, 10-4
AUSTRALIAN AND NEW ZEALAND MENTAL HEALTH JOURNAL 201 (2001).
46) Park, Heonsoo, Human Rights Situation of Persons with Mental Disabilities and the Necessary Actions and
Responses, presented in Public Forum on the Human Rights of Persons with Mental Disabilities held by Korea
Family Association for Mental Health, 13 May 2005, at 45 (available only in Korean).

47) PETER MORRALL, MADNESS AND MURDER, (Whurr Publishers 2000).
48) SHIN ET AL. supra note 23, at 8-9; Peter Morrall, U.K. Mental Health Policy: Chaos and Control, in MENTAL
HEALTH — GLOBAL POLICIES AND HUMAN RIGHT (Peter Morrall & Mike Hazelton, eds, Whurr Publishers 2002), at
16.
49) 527 U.S. 581 (1999).
50) The Americans With Disabilities Act, Title II, Section 302 (b)(1)(B).
“Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with
a disability in the most integrated setting appropriate to the needs of the individual.”

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persons with mental illness to be integrated into the community as one of its cardinal
rules.51) The principles have been repeated in succeeding international documents to
be reconfirmed in the most recent U.N. Convention of Rights of Persons with
Disabilities (2006).
The policy of community-based mental health care is enshrined in Korean
legislations as well. The ideal of community-based rehabilitation is incorporated in
Articles 15 and 16 of the Mental Health Act.52) However, this proclaimed policy
largely remains a declarative norm. The Korean government has consistently taken

the opposite route, as evidenced by its records.53) During the last decade, there has
been a steady increase in the numbers of hospitals and beds.54)
The MI principles and Olmstead rule encourage the community-based treatment

51) “Every person with a mental illness has the right to live and work, as far as possible, in the community.”
(Principle 3); “Every patient shall have the right to be treated and cared for, as far as possible, in the community in
which he or she lives.” (Principle 7, Item 1).
52) Article 15 (Creation and Operation of Rehabilitation Establishments)
(1) The State and local governments may create and operate rehabilitation establishments.
(2) In the event that any person other than the persons referred to in paragraph (1) intends to create and operate a
rehabilitation establishment, he shall make a report thereon to the head of Si/Gun/Gu having jurisdiction over
the location of such rehabilitation establishment. The same shall apply to a case where he intents to change
important matters that are prescribed by the Ordinance of the Ministry of Health and Welfare from among
the reported matters.
(3) The head of every rehabilitation establishment shall conduct rehabilitation training for psychopaths under the
conditions as prescribed by the Minister of Health and Welfare.
(4) Necessary matters concerning the standards for establishments, the number of psychopaths to be
accommodated therein, the number of employees and their qualifications, the report on the creation and
operation, the report on alteration, the use and operation of rehabilitation establishments shall be prescribed
by the Ordinance of the Ministry of Health and Welfare.
Article 16 (Kinds of Rehabilitation Establishment)
The kinds of rehabilitation establishments shall be as follows:
1. Life training facilities for psychopaths: facilities for psychopaths who have difficulties in daily lives at
home because of their psychopathy, and of which the purpose is to promote rehabilitation of psychopaths
by enabling them to use a living room or other facility at a discounted fee and providing them with
necessary training and guidance so that they may adapt themselves to a daily life at home;
2. Work training facilities for psychopaths: facilities of which the purpose is to promote rehabilitation of
psychopaths who have difficulties for employment through allowing them to use a living room or other
facility at a discounted fee and providing necessary training and mediating their jobs; and
3. Other facilities as prescribed by the Ordinance of the Ministry of Health and Welfare.

53) See supra note 30.
54) See supra note 32.

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system. One of the core devices of this system is a community treatment order,
oftentimes associated with the judiciary. The Community treatment order is a civil
commitment system which makes it mandatory for certain kinds of long-term mental
patients, such as schizophrenia and mania patients, to be treated under the
community health care schemes rather than in mental hospitals.55) It is claimed that
this system has been proven very effective in reducing the number of chronic
patients.56)
In Australia, mental health services are provided in both institutional and
community settings.57) Community-based mental health care services include
assessment, crisis intervention, case management and rehabilitation.58) In Australia,
between the 1960s and 1990s, the transition from institution-based care to
community-based care saw a decline in the availability of psychiatric beds from 287
per 100,000 populations to 40 beds per 100,000.59) Within a policy context of
balancing between the protection for the rights of the people with mental illnesses in

need of treatment and the community’s legitimate expectation to be protected from
harm, much of the reform direction continues to be shaped by the needs of specialist
psychiatric services and the compulsory end of the treatment spectrum.60)
Local governments in Korea, which are both administrators and protectors of
patients under the Mental Health Act, are not fully equipped with either human
resources nor professional knowledge to handle these newly emerging issues
effectively. Moreover, to date, only one provincial government enacted ordinance
related to this subject, and none has established a long-term policy plan. 61)
Considering such unreadiness of the local governments, coupled with the apathetic
attitude that the Korean judiciary has maintained on the matters of mental health, it is
unrealistic that a Korean version of Olmstead will be born in the near future.

55) This system is called in various names such as IOC (Involuntary Outpatient Commitment), AOT (Assisted
Outpatient Treatment) and CAT (Compulsory Ambulatory Treatment).
56) SHIN ET AL. supra note 23, at 62.
57) Mike Hazelton & Michael Clinton, Human Rights, Citizenship and Mental Health in Australia, in MENTAL
HEALTH — GLOBAL POLICIES AND HUMAN RIGHTS 43 (Peter Morrall & Mike Hazelton, eds., Whurr Publishers 2002).
Psychiatric hospitals and wards in acute hospitals provide specialized psychiatric care.
58) Id.
59) Id. at 46.
60) Id. at 48.
61) BAE, supra note 36, at 57.

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3. Involuntary Admission to Mental Health Facilities
Under the MI Principles, an agent should act in the best interest of the patient, and
in no case a person whose interest is in conflict with the patient should be allowed to
act on his behalf.62) As a special notion was made by the WHO, the Mental Health
Act of Korea presupposes the major role of the family members of the patient
throughout the entire process of medical treatment.63) As the statistics vividly
demonstrates, the majority of cases of involuntary hospitalization are heralded by the
family.64)
In contemporary Korean society, the extended family is becoming a rarity. The
evaporation of traditional family values associated with the extended family has
entailed serious impacts on Korean society.65) The vacuum of neglect that was
created in the demise of traditional family values has not been properly filled, either
by the State or other social mechanisms.66) Under the Mental Health Act, duty
bearers of family support under the Civil Code hold and bear primary rights and
duties as a person responsible for guardianship and representation of a mental
patient. Given the dramatic changes in the attitude of the contemporary Koreans, the
legal scheme based on the outgoing traditional values needs serious reconsideration.
There is an ever increasing danger of conflicting interests among family members,
which is likely to be intensified when the family members fail to share comparable
status.
Some have argued for implementing a ‘public guardian system’ as an
alternative.67) This may deserve policy consideration. However, if the system presupposes active involvement of the court, the likelihood of success is flimsy at best.

62) “In any decision affecting the rights of the patient, representation must be done by a person who has no

conflict of interests with the patient.” (Principle 6)
63) See supra note 12 and accompanying texts.
64) See supra note 34.
65) Support of helpless parents is no more an unchallengeable customary law, much less for the care of the
siblings. Older generations accustomed to traditional ways of life suffer emotional distress. Many have also been
deprived of economic means.
66) Elderly Koreans with mental illness are virtually abandoned.
67) P AMELA B. TEASTER ET AL., W ARD OF THE S TATES: A N ATIONAL S TUDY OF PUBLIC GUARDIANSHIP
(University of Kentucky Press 2005).

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4. Inadequate Treatment
In all the relevant legislations, mental illness is included in the definition of
disability. For example, Section 1, Article 2 of the Welfare of Persons with
Disabilities Act defines the term ‘disabled person’ to include ‘mental disabilities’ on
equal footing with physical disabilities.68) The Article 3 (1) of the Mental Health Act
defines the term of mental illness, and by the revision of 2000, alcoholism is also
included as a form of mental illness.69)

The concept of mental illness is diverse in character.70) Therefore, different
methods and skills of treatment should be employed depending on the patient’s
health needs. On this front, the Scottish experience may provide a valuable reference.
Scotland adopted the “four populations policy” as its basic framework for the
treatment of mental patients. Scotland applies the following policy respectively to
people in four categories:
(1) Prevention policy targets the general public to prevent potential harm on its
mental health with a special attention to the young generation;
(2) Psychological therapies are prioritized for a population group having mild
to moderate mental health problems, namely depression, stress and
anxiety;
(3) A central focus of mental health policy is put on those who suffer severe
and enduring mental illnesses such as schizophrenia, bi-polar disorder and
dementia; and
(4) Extra safety mechanisms are to be implemented for those who have severe

68) (1) For the purpose of this Act, the term “disabled person” means those who are considerably restricted in
their daily and social life for a long period of time due to their physical or mental disabilities. Under Article 2,
Section (2)-2, the term “mental disabilities” means the disabilities caused by mental retardation and mental diseases.
The UN Convention on the Rights of Persons with Disabilities (2006) provides similar definition: “Persons with
disabilities include those with who have long-term physical, mental, intellectual or sensory impairment which in
interaction with various barriers may hinder their full and effective participation in society on an equal basis with
others.” (Article 1)
69) “The term ‘psychopath’ means a person with a mental illness (including an organic mental illness),
personality disorder, alcoholism and medicinal poisoning and other non-psychopathic mental disorders.”
70) It includes depression, anxiety disorder, dysthymic disorder, and obsessive compulsive disorder (OCD).

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mental illnesses coupled with criminal history.71)
The principle of treatment by least restrictive means, as proclaimed by the MI
Principles has been firmly established at the international level.72) This principle is
pronounced in the mental health legislations of Korea accordingly.73) In response to
the recommendation of the National Human Rights Commission on December 30,
2003, the Ministry of Health and Welfare issued a guideline on the ‘segregation and
restraint’ in the treatment of the mental patients. The guideline, although not fully
compatible with the MI principles, serves as an important working norm in the field.
National health policy seems to spell out the place of mental health in the overall
planning of health care. However, integrating mental health into primary health care
has not become a policy focus. The health insurance system discriminates against
mental health care patients by applying different rules to the medical treatment of the
mentally ill.74)
The Mental Health Adjudication Committee under Article 27 of the Mental
Health Act may fall into the category of “review body” as envisioned by the MI
Principles.75) The Committee is authorized with expansive powers ranging from

71) Geoff Huggins, Feature and Merits of Scottish Mental Health Law and Major Issues in the Legislation
Process, presented in International Symposium on Human Rights of Mentally Challenged, Nov. 2006, at 87-100.
72) Principle 8 (1).

“Every patient shall have the right to be treated in the least restrictive environment and with least restrictive or
intrusive treatment.”
73) Mental Health Act, Law No. 5133, 30 Dec. 1995, as amended as Law No. 7849, 21 Feb. 2006
Article 45 (Prohibition on Movement Restriction)
(1) The director of a medical institution for mental illness shall not restrict the freedom of communication, the
freedom of interviews, and other freedom of movements with respect to psychopaths as prescribed by the
Presidential Decree.
(2) In case where the director of a medical institution for mental illness is restricting movements with respect to
matters provided for in paragraph (1), the restriction shall be conducted in the minimum extent, and the
reasons for restriction shall be recorded in a record of treatment.
74) Seo, supra note 13, at 14-15.
75) Principle 17 (Review Body)
1. The review body shall be a judicial or other independent and impartial body established by domestic law and
functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions,
have the assistance of one or more qualified and independent mental health practitioners and take their advice
into account.
2. The review body’s initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a
person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted

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policy deliberation to the specific decisions on the admission or discharge of an
individual patient.76) The reality shows, however, that the Committee does not

in accordance with simple and expeditious procedures as specified by domestic law.
3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified
by domestic law.
4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as
specified by domestic law.
5. At each review, the review body shall consider whether the criteria for involuntary admission set out in
paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary
patient.
6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the
retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of
that person as such a patient.
7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court
against a decision that the patient be admitted to, or be retained in, a mental health facility.
76) Article 28 (Duties of Mental Health Deliberative Committee)
(1) The Central Mental Health Deliberative Committee shall deliberate the matters falling under one of the
following subparagraphs:
1. Matters pertaining to mental health policies;
2. Matters pertaining to standards of mental health facilities;
3. Various kinds of standards of hospitalization and treatment of psychopaths;
4. Offering of medical opinions pertaining to the consent for treatment; and
5. Cases of application for re-examination.
(2) The Local Mental Health Deliberative Committee shall deliberate the matters falling under one of the
following subparagraphs:
1. Supervision and correction on mental health facilities;
2. Assessment on mental health facilities;

3. Review on treatment procedures to which objections have been raised;
4. Review on improvement in treatments; and
5. Review on discharge and continuative hospitalization.
(3) The number of members of the Central Mental Health Deliberative Committee and the Local Mental Health
Deliberation Committee (hereinafter referred to as each “Mental Health Deliberative Committee”) shall be
not less than five and not more than fifteen and the tenure shall be two years, with an opportunity for
reappointment.
(4) The members of each Mental Health Deliberative Committee shall be appointed or entrusted by the Minister
of Health and Welfare and the Mayor/Do governor respectively from among the psychiatrists, persons with
qualifications as a judge, public prosecutor or a lawyer, the specialists of mental health and persons with
expert knowledge and experience in mental health.
(5) The Mental Health Adjudication Committee shall consist of the number of members ranging from not less
than 5 to not more than 10 who are appointed by the Minister of Health and Welfare and the Mayor/Do
governor from among members of the Mental Health Deliberative Committee and shall review cases in the

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function effectively for the protection of mental patients. Typically, it is mostly
composed of psychiatrists and disposes too many cases without serious deliberation,

mainly due to time constraints.77) Statistics reveal that the denial of decision for
renewal remained extremely rare (4.4 percent) in 2001.78) In one province, only 7 out
of 1,156 patients were ordered to be discharged from the hospital.79) As such, free
will of patients has been systematically neglected in the process of admission to and
discharge from hospitals, extension of retention periods and medical treatment, and
daily life.
Some have called for the active role of the judiciary in this field. Indian practice
may be a case in point. In India, the judiciary led by the Supreme Court has been
actively involved in matters of mental health care by granting various remedies and
forcing reformation in favor of protecting the rights of people with mental
illnesses.80) However, under Korean legal system and practice, the judiciary remains
a largely irrelevant and remote institution in the mental health care business. The
judiciary is basically an institution for remedial justice, not for preventive justice. It
would be extremely costly to bring the court into the routine business of mental
hospitals. Furthermore, public trust in the judiciary is not deep enough to invite its
routine intervention. This agenda needs time long enough to ripen before being
brought to the table.
Another complexity stems from the conflicting interests of the health
professionals and related industry, such as mental hospitals and protection
institutions. It has been repeatedly argued that health professionals are one group that
displays adverse attitudes toward the mentally ill.81) There exists an assertion that the
health industry subtly reaps the public prejudice for its economic gains. Amidst
serious competition in the health industry, the mental hospital has emerged as one of

collegiate court. In this case, the members shall include not less than one person having qualifications as a
psychiatrist, judge, public prosecutor, or a lawyer, respectively.
77) Seo, MiKyung, Measures to Improve the Human Rights Conditions in the Mental Health Facilities,
presented in Public Hearing on the Human Rights Situation in the Mental Health Facilities held by National Human
Rights Commission of Korea, 20 Nov. 2004, at 19 (available only in Korean).
78) Id.

79) Id.
80) R. Srinivasa Murthy, India: Towards Community Heath Care, in MENTAL HEALTH — GLOBAL POLICIES AND
HUMAN RIGHTS (Peter Morrall and Mike Hazelton, eds., Whurr Publishers 2002), at 104.
81) Hazelton and Clinton, supra note 57, at 57.

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the more lucrative medical businesses in recent years.82)

5. Inadequate Funding: Problem of Social Costs
Equality and fairness are two core values that should be upheld in formulating
policies for the mental health system. Mentally disordered people should not be
discriminated against in such areas of civil life as education, employment, and access
to health services, while those in most need are given the highest priority in health
resources allocation. These two core values are emerging from high quality,
comprehensive, and integrated services, which are focused on the needs of the user,
and supported by evidence.83) As the financial cost of mental health care continues to
escalate, so also does the human cost.84) It is nearly impossible to separate policy,
economics, social status markers, education and genetic predispositions into clear

areas of scientific or historical inquiry.85)
There are several other issues in measuring economic costs of mental illness that
are potentially large in magnitude and controversial in their conclusions. These are
the costs of families caring for their mentally ill members, the labor market impact of
mental illness and non-productivity losses due to illness.86) Other costs are those
associated with improper measurements, unreliable diagnostic systems and
inappropriate measures of reliability.87) These costs are acutely felt when resources
and talents are used in a wasteful fashion.88) Physicians, policy makers and others
struggle to strike a balance between the need to contain the costs and efforts to
maintain or improve both access to services and the quality of care provided.89)

82) Song, Sanggyo, Human Rights of Persons with Mental Disabilities: From a Legal Perspective, presented in
Human Rights Workshop for Mental Health Practitioners held by National Human Rights Commission of Korea, 27
Oct. 2007, at 28 (available only in Korean).
83) Morrall, supra note 48, at 19.
84) Shirley A. Smoyak. US Mental Health Policy: Progress and Continuing Problems, in MENTAL HEALTH —
GLOBAL POLICIES AND HUMAN RIGHTS (Peter Morrall & Mike Hazelton, eds., Whurr Publishers 2002), at 24
85) Id.
86) Ahmed Okasha, Egypt: 5000 Years of Science and Care for Mental Patients, in MENTAL HEALTH —
GLOBAL POLICIES AND HUMAN RIGHTS (Peter Morrall and Mike Hazelton, eds., Whurr Publishers 2002), at 90.
87) Id.
88) Id.
89) Id.

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